Race and the Tragedy of Quota-Based Policing

Race and the Tragedy of Quota-Based Policing

This article appears in the Fall 2016 issue of The American Prospect magazine. Subscribe here.

Criminal justice reform divides into two seemingly irreconcilable camps: Black Lives Matter versus blue lives matter. On one side are racial minorities—often led by women—and allied whites who acknowledge that having black or brown skin can be a death-dealing hazard. These individuals are exasperated about lethal police violence and the resultant lack of accountability. On the other side are cops and their apologists. They reject the idea of police bias, are bewildered at the energy minorities spend protesting police brutality (as opposed to in-group violence), and argue that the only kind of “reform” necessary should tilt toward police.

Despite their sharp disagreements, there may be one issue on which these two groups might agree: the undesirability of quotas in police forces. By police quotas, I mean formal and informal measures that require police officers to issue a particular number of tickets or make a certain number of arrests, often within a specific time frame. Formally, a quota is an explicit policy that is either unabashed (“Officer Winslow, get X citations a month”) or masked with gentler, technocratic tropes like “goals” or “targets.” Informally, a quota may be an implied prod for police officers to increase their “activity.”

AP Photo/Seth Wenig, File

Black and Blue: Can cops and communities get on the same side?

Across the country, police officers’ use of quotas have been investigated, litigated, and legislated against, but the perniciousness of the practice gets lost amid discussions about more imminent dangers such as fatal police shootings or the overreliance on incarceration as a punishment tool.

But this understandable prioritization is why the use of quotas is especially dangerous: It garners less attention, and like other police practices, exists behind the “blue wall of silence.” This wall consists of a subculture that prohibits cops from reporting misconduct and makes exposing quota regimes difficult. Moreover, a police quota, as opposed to racial profiling, but sometimes in concert with it, can be the prelude to minorities’ ensnarement in the legal system (à la Ferguson) or the beginning of a fatal police interaction.

The Department of Justice’s Ferguson Report alludes to this interface between racial bias and quotas. The DOJ was clear that “Ferguson’s police and municipal court practices both reflect and exacerbate existing racial bias.” Nevertheless, despite circumstances that suggest that the city’s use of court fees and fines was buoyed by numbers-driven policing, the report mentioned the word “quota” once. In fact, the DOJ was careful to not accuse the city of establishing quotas, despite recommending that it “prohibit the use of ticketing and arrest quotas, whether formal or informal.” This awkward non-acknowledgment-cum-suggestion may have been because the DOJ did not have incontrovertible proof of a quota system. But it demonstrates the difficulty of piercing the veil of police misconduct.

Some states ostensibly try to prevent the implementation of quotas in policing and have laws on the books prohibiting such systems. These include New York, California, Illinois, Texas, Nebraska, Pennsylvania, and North Carolina, among others. These laws vary, but have two simple goals.

The first seeks to protect citizens from the ways “activity goals” can force police to manufacture illegality. The other is anchored by labor concerns and seeks to preserve police discretion, which can be jeopardized when cops are forced to robotically meet predetermined measures. For these two primary reasons, the issue of police quotas might close the gap between the left and the right; it could also be a key policy reform issue for both presidential candidates. For Hillary Clinton, who has been dogged by two-decades-old comments about “superpredators” and has received criticism for a crime bill that her husband signed, pinpointing this quota problem could be a barometer of her commitment to racial justice vis-à-vis the legal system. Moreover, since it is an issue that has support from police, addressing quotas might allow her to avoid completely alienating the white right.

For Donald Trump, who often fawns over law enforcement, tackling the issue of quotas could show that he cares about the labor conditions of workers he has described as “the most mistreated group in America.” Police unions are a powerful political constituency and have been vocal critics of quota systems, although not uniformly. The Illinois Fraternal Order of Police Labor Council captured the anti-police-quota sentiment best: “We believe quotas create unnecessary tension between the public and law enforcement. … [Q]uotas turn police officers into tax collection machines instead of professional law enforcement officers.” By addressing the employment consequences that come from failure to meet quotas, Trump could curry more favor with police while offering symbolic or real crumbs to minorities.

Irrespective of who wins, the next president only has to look at the torrent of court cases, settlements, and media accounts that undoubtedly show that quotas are a prevalent police practice and tool.

UNSURPRISINGLY, NEW YORK City’s approximately 35,000 police officers—the largest force in the country—have been no stranger to quotas. In 2012, Officer Craig Matthews accused the city of retaliating against him for speaking to commanding officers about an arrest-quota policy in his South Bronx precinct. Matthews claimed that the illegal policy was “causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers.” Retaliation against him included “punitive assignments, denial of overtime and leave, separation from his career-long partner, humiliating treatment by supervisors, and negative performance evaluations.” The city settled for $280,000.

Floyd v. City of New York, the 2013 class-action decision that held that the NYPD’s stop-and-frisk policy was unconstitutional, also captured the nature of quotas in Gotham. The decision is replete with references to secret recordings that detailed lieutenants’ directives to officers to “get those numbers” and “crush the fucking city,” while reminding officers that they are “not working in Midtown Manhattan where people are walking around smiling and happy. You’re working in Bed-Stuy where everyone’s probably got a warrant.”

Making matters worse, NYPD brass brazenly broke a 2010 labor law that prohibited quotas. The law prohibits employers from penalizing employees in any manner for failure to meet a quota. The law covers a range of employment actions, including “a reassignment, a scheduling change, an adverse evaluation, a constructive dismissal, the denial of a promotion, or the denial of overtime.”

In violation of this prohibition, the NYPD implemented a “Quest for Excellence” evaluation program in 2011. Referring to one of the program’s key documents, Judge Shira Scheindlin found that it required that supervisors “‘can and must’ set ‘performance goals’ for ‘proactive enforcement activities.’” It also warned, Scheindlin noted, that “officers whose numbers are too low should be subjected to increasingly serious discipline if their low numbers persist” (emphasis added). Deputy Commissioner John P. Beirne admitted that an officer’s failure to engage in such “proactive activities” could result in reassignment, a negative performance evaluation, or other adverse employment action. A pending federal lawsuit brought by several Latino and African American police officers accuses the NYPD of breaking the 2010 labor law, along with a host of state and federal laws.

Of course Los Angeles is never to be outdone by the Big Apple. That city has actually paid more money than New York in settlements in the past decade—approximately $10 million—to officers who claimed that the Los Angeles Police Department illegally required them to comply with ticket quotas. The settlements all derive from allegations that Captain Nancy Lauer ordered officers to write at least 18 traffic tickets per shift and required that 80 percent of citations account for major violations.

Officers who didn’t comply would not get overtime or were given undesirable assignments. Despite the city’s claim that 18 was a goal and not a mandate, a jury awarded two officers approximately $2 million in damages in 2011. Two years later, the city agreed to pay almost $6 million to 11 police officers in a separate lawsuit regarding the same quota system. Finally, in 2016, Los Angeles agreed to pay $950,000 to a former police officer who also claimed that he was retaliated against for not participating in the ticket-quota system.

Nicolas Nova/Creative Commons

In the past decade, Los Angeles has paid more money than New York in settlements to officers who claimed that the LAPD illegally required them to comply with ticket quotas.

In the Dallas metropolitan area, a local CBS investigation found that the Fort Worth Police Department had a special program funded by a federal grant (the Selective Traffic Enforcement Program) that required officers to make “four traffic contacts per hour.” According to CBS News, an old police memo allegedly indicated that the program sought “to increase speed citations by 14,250; DWI arrests by 200; safety belt citations by 975 and child safety seat citations by 100.” Those with the most tickets at the end of the period received a trophy and a letter of appreciation.

In Atlanta, arrest quotas allegedly served as the source of the bungled drug raid that killed a 92-year-old African American woman named Kathryn Johnston. After obtaining a no-knock warrant based on an informant’s claim that he bought drugs at Johnston’s house, police entered the apartment and killed her. They found no drugs, but planted marijuana in her home and submitted cocaine as evidence that they falsely said they purchased from the home. In a lawsuit by Johnston’s estate against the city, one of the officers involved in the killing testified that Atlanta had a quota policy that was written, distributed, and publicized in his department. Other officers sued the city, claiming police were offered pizza, DVDs, and shorter work days for meeting their targets.

QUOTAS ARE REAL AND arguably pervasive, but so are obstacles to getting rid of them. One problem is denial. Christopher Dunn, a lawyer for the New York Civil Liberties Union who won the $280,000 settlement for Officer Matthews, said via email that police departments “deny that quotas exist and uniformly claim they are doing little more than trying to get cops to do their jobs. In some instances, this is fair; in others, it is not.” When department leaders admit that quotas influence policing, they often prefer terms like “performance standards.” But a claim that there is a substantive difference between quotas and these performance metrics is pure hooey. As Malcolm Sparrow, a professor at Harvard’s John F. Kennedy School of Government has argued, “In terms of the effect on police operations, the two ideas are virtually indistinguishable.” Notwithstanding these similarities, a disavowal of numbers-based policing poses concerns about how to evaluate cops.

Professor Peter Moskos is a sociologist at John Jay College of Criminal Justice who spent a year as a police officer in Baltimore and wrote a book about his experience. In an interview with the Prospect, he discussed why numbers-based policing carries so much cachet. He noted, “There is a fear that cops are lazy and need to be watched like they are little kids.” Indeed, the stereotype of the donut-dunking, coffee-sipping, underactive police officer is not just a pop-culture trope, but a significant concern for law enforcement leadership, especially considering the inability to closely monitor police work. Importantly, Moskos mentioned that when quotas do exist, they are often self-imposed and can be a product of rewards systems in police departments. “If you want to get transferred, they [leadership] look at numbers. You have to show, as cops would say, ‘you were working.’ Even if there is no formal quota pressure, there is a belief that all arrests are OK. Part of the culture is, if in doubt, then arrest.” Moskos’s comments suggest that even in the absence of top-down, numbers-based directives, police officers might achieve a minimum number of arrests or citations for career ambitions, rather than public-safety reasons. Disentangling such motivations is no easy task.

There is also the problem of standing to bring lawsuits. Despite the clear implications for civil-rights abuses, in some states it is only police officers who may challenge quota regimes in states with prohibitions, as opposed to civilians. Labor-law scholars point out that police officers would be more likely to rely on grievance arbitration to challenge quota-based employment decisions as opposed to litigation. Arbitration is cheaper, faster, and puts the burden of proving the validity of adverse employment actions on the employer—in this case, police leadership. Although remedies are often smaller in such disputes and limited to deleting the employment decision, as opposed to the money damages in litigation, arbitration is more private, which is an important concern for police officers who presumably want to avoid the stigma of being considered a “rat.” Thus, the potentially powerful tools that are quota laws are sometimes limited in how and where they can be used.

Ideologically, police unions and criminal justice reformers are simply not birds of a feather. For example, the tenth and final item of Black Lives Matter’s associated “Campaign Zero” platform is “fair police contracts.” Specifically, the group is challenging collective-bargaining agreements that prevent cops from being interrogated immediately after an incident of misconduct or that allow an officer under investigation to review relevant evidence before he or she is interrogated. Curbing such excesses fits into the category of “fair.” But fairness is in the eye of the beholder. Such reasonable reforms will probably not be embraced by unions whose job is to vigorously fight for the interests of their members, regardless of accountability concerns. Police officers, in theory, have the public as their constituency, but police unions owe a duty of loyalty only to their members. Thus, even though quotas are tools that may not serve law-abiding police officers’ interests, getting them and their unions to challenge such schemes as a civil-rights issue is a Hail Mary pass.

Undoubtedly, BLM and cops often have divergent interests. Yet politics can make strange bedfellows, and both groups share deep reservations about numbers-based policing. For example, the National Police Research Platform (NPRP) is a DOJ-sponsored initiative among police leaders and researchers that seeks to gather more reliable information about policing. While officers are reticent about saying the q-word, in various surveys, NPRP found that “8 out of 10 police officers reported that their agency is ‘more interested in measuring the amount of activity by officers (e.g. number of tickets or arrests) than the quality of their work.’” Speaking of eight, the eighth policy solution in BLM’s “Campaign Zero” platform is to “end for-profit policing.” The first sub-point within this position is to “ban police departments from using ticket or arrest quotas to evaluate the performance of police officers,” with an explicit reference to Illinois’ quota ban.

There is also the challenge of carrying out the oft-expressed goal of quality rather than quantity in arrests. In the magazine The Police Chief, which has the subtitle “The Professional Voice of Law Enforcement” and serves as the official publication of the International Association of Chiefs of Police, Dr. Ronal Serpas writes about using citizen-satisfaction surveys to measure police performance. Such qualitative measurements, Serpas argues, capture nuances that are missed in typical quantitative snapshots of policing. In his opinion, such surveys should be the “gold standard of measurement and accountability of U.S. policing” and “can assess crime, neighborhood disorder, perceptions of personal and community safety, officer behavior, officer and departmental cooperation, [and] professionalism.” This is coming from the former chief of the Metropolitan Nashville Police Department and superintendent of the New Orleans Police Department. He is not alone. A glance through literature on police performance shows that much ink has been spent on creating reliable qualitative benchmarks that can be used to measure law enforcement activity.

Again, BLM has its own policy analogue. The second policy recommendation in Campaign Zero is “community oversight.” One sub-point within this position is the establishment of Civilian Complaints Offices that can “issue public quarterly reports analyzing complaints, demographics of complainants, status and findings of investigations and actions taken as a result.” Ambitious, yes, but the group points to San Francisco’s Office of Citizen Complaints as an actual template.

The glue between these opposite strands of police reform is a fuller description of police (mis)conduct. Are cops in fact making traffic stops and arrests simply to justify their bureaucratic existence, or are such encounters translating into improved public safety (such as fewer traffic accidents or reduced crime)? To be sure, poor blacks and Latinos will remain particularly vulnerable to police misconduct no matter what shape law enforcement takes; history supports that proposition. But giving more primacy to the qualitative texture of police interactions—in regard to law enforcement’s behavior and civilians’ experiences—would help illustrate the documented as well as not-so-obvious mechanisms that drive racialized and gendered complaints of police misconduct. Transparency about such data, along with shared governance, would go a long way with law enforcement’s legitimacy issues, while loosening the perceived yoke many racial minorities feel the criminal justice system places on them.

Max Herman/NurPhoto/Sipa via AP Images

A protester confronts a Chicago Police officer after police forcibly removed people from the street during a march against ongoing police violence in Chicago on July 9, 2016.

How would a new president do this, especially when existing quota laws are state-based, when police union contracts that bargain over labor issues like performance evaluations usually occur on a municipal level, and when criminal justice is generally understood to be a local issue? One answer lies in the Violent Crime Control and Law Enforcement Act of 1994—the same crime bill that contributed to the mass incarceration Bill Clinton apologized for last fall.

When the bill is stripped of its odious elements (like more money for prisons and the discontinuation of higher education for prisoners) as well as more laudable imperatives (like a ban on assault weapons and funding for programs that prevent violence against women), a notable feature remains: the Office of Community Oriented Policing Services (the COPS Office). This office sits in the DOJ and is responsible for advancing the controversial, if not vaunted, practice of “community policing.” In its most basic form, the office provides cash to state and local law enforcement for the hiring and training of police officers, and, according to its website, the development of “innovative policing strategies.” Since 1994, the program has provided a cool $14 billion to lower levels of government.

Kami Chavis Simmons, a former assistant U.S. attorney and now law professor at Wake Forest University, has called attention to how this part of the crime bill does not have any requirement for departments to actually ensure the accountability of the officers that they hire. Put another way, there could be more conditions tied to this money that might spur better policing. To this end, she suggests an amendment to the statute that ties funding to local government’s compliance with minimum federal standards. Departments that fail to meet these standards would lose 5 percent of their COPS funding. Money is a motivator, and the loss of potential funding might hasten the pace of police reform and the shape of accountability.

Professor Simmons is interested in applying these standards specifically to police misconduct and constitutional violations—but her model is also applicable to challenging quota regimes. Accordingly, the federal government might:

• require the collection of certain kinds of qualitative data related to stops and civilian (dis)satisfaction;

• induce departments to show they are not relying exclusively on crude numbers to measure police performance;

• and/or, with the input of civilians and experts, articulate a diverse set of standards, which departments use to consider evaluations.

As a general matter, this might seem trickier for a President Trump or a Republican-controlled Congress. Conservatives are allergic to the specter of federal encroachment into “states’ rights”—that seemingly nonpartisan term that helped buoy slavery and Jim Crow. But conservatives’ penchant for accountability and reduced government spending, whether real or rhetorical, might make such a scheme appealing. This is especially true for economic conservatives as well as criminal justice reform–oriented Republicans.

In the case of a President Hillary Clinton, she would only have to look toward her husband’s presidency for a guide. Bill Clinton’s gutting of welfare “as we have come to know it” operated in a similar fashion: minimum federal requirements with states having wide flexibility in the design of their own programs. She would again have a model with Bill Clinton, who worked assiduously with Senate Majority Leader Trent Lott and Speaker of the House Newt Gingrich to pass the welfare reform bill.

Curbing the use of quotas is not a magic elixir. It is not the radical transformation in policing our country desperately needs. Outright and implicit racial bias are potent and pervasive sentiments that outstrip one policy proposal. But as a discrete police administration issue, tackling the use of quotas could temper reward systems that easily invite racial discrimination and would be a small step in the uphill journey toward eradicating criminal justice inequality.